IN THE CASE OF:	  

		BOARD DATE:  3 July 2012

		DOCKET NUMBER:  AR20110024233 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests:

* Award of the Silver Star
* Award of the Purple Heart
* Promotion to the rank of sergeant (E-5)

2.  The applicant states:

* On "May 9th" somewhere out in the field, he was a point man and was instructed to take a squad of guys and help cut down some trees for overhead cover
* The squad came under small arms fire from the North Vietnamese
* In his haste to return fire, he ran for cover behind a jeep, which quickly backed up and smashed him in the head knocking him unconscious
* He received stitches for the gash he sustained to his head
* In May 1970, he killed an enemy Soldier who was attempting to guard a North Vietnamese medical complex
* He was told he was being recommended for a Silver Star
* He was given a field promotion to sergeant after retrieving the body of a captain who had been killed
* The promotion was never acknowledged and he was discharged in the rank of specialist four (E-4)

3.  The applicant provides a self-authored letter, dated 22 September 2011.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was inducted into the Army on 11 February 1969.  He completed training as a light weapons infantryman.

3.  The applicant was promoted to pay grade E-2 on 11 May 1969 and to pay grade E-3 on 28 August 1969.

4.  On 23 September 1969, the applicant arrived in Vietnam.  He was promoted to pay grade E-4 on 7 April 1970.  He departed Vietnam on 26 September 1970.

5.  The applicant was honorably released from active duty on 2 December 1970 and was transferred to the U.S. Army Reserve Control Group (Annual Training).  He completed 1 year, 9 months, and 22 days of total active duty service.

6.  The applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the following awards:

* Bronze Star Medal
* Vietnam Service Medal
* Combat Infantryman Badge
* two Overseas Service Bars
* Vietnam Campaign Medal with Device (1960)
* Air Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar
* Expert Marksmanship Qualification Badge with Machinegun Bar
* National Defense Service Medal

7.  A review of the applicant’s records does not show that he was wounded as a result of hostile action by enemy forces while he was in the Army.  His records do not reveal that he was ever recommended for award of the Silver Star or for promotion to pay grade E-5.

8.  The applicant's name is not shown on the Vietnam Casualty Listing.

9.  Army Regulation 600-8-22 (Military Awards) states:

   a.  the Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required; and

   b.  the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

10.  Title 10, U.S. Code, section 1130 provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

11.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to the Secretary of the Army at the following agency:  Commander, U.S. Army Human Resources Command, 
ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122.  The applicant's unit must be clearly identified, along with the period of assignment and the award being recommended.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Corroborating evidence is best provided by commanders, leaders and fellow Soldiers who had personal knowledge of the circumstances and events relative to the request.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-9 provides that the Board begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted.

2.  There is no evidence in the applicant’s official military record showing he was wounded as a result of hostile action by enemy forces.  His name is not shown on the Vietnam Casualty Listing as a battle casualty.  His description of the incident indicates he was not injured as a direct result of enemy action.  He is not authorized the award of the Purple Heart.

3.  The applicant’s military record does not contain any evidence showing he was ever recommended for award of the Silver Star.  Based on the available evidence, he is not authorized the Silver Star.  However, this in no way affects the applicant’s right to pursue his claim for the Silver Star by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

4.  The applicant’s records show he was promoted to pay grade E-4 on 7 April 1970.  There is no evidence in his record showing he was ever promoted or recommended for promotion to pay grade E-5.

5.  In view of the foregoing, the applicant’s requests should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X ___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20110024233





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110024233



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1